Sunday, May 1, 2011

A Sad Tale

The most heartbreaking disbarment I've seen in awhile was ordered last Friday by the Maryland Court of Appeals. The respondent was an experienced estate and trusts attorney who had no record of any prior discipline. He was admitted in Maryland in 1997.

The attorney moved his practice between Maryland and Virginia. He had some particularly difficult personal circumstances involving his divorce and the care of triplets who had been born with significant health problems. He was squeezed financially by his situation, and was a devoted father.

The misconduct arose during the course of routine estate planning services provided to a Virginia couple.

The wife (hereinafter "the daughter") expressed concern about her mother's health and estate plan. The mother had in place a 1995 will that left her estate (principally her home) to her four children in equal parts. The attorney drafted a series of documents to update the estate plan and reduce estate costs. The documents were "reasonable and appropriate" given the mother's situation. There were contacts between the mother and the attorney, but the mother did not follow through and the documents were never signed.

The fatal day was August 26, 2008.

The mother lay dying. The attorney was summoned to the hospital with documents in hand. The mother was "unconscious or semi-conscious." She was in no condition to sign the documents and never did so before her death.

The distraught children all wished that the documents (which continued to treat them all as equals) had been signed in order to improve their ability to close the estate with a minimum of cost. They "pleaded with" the attorney to assist in the forgery of the mother's name. He explained the fraud but eventually gave in to their entreaties.

He took the forgeries to his office and had them falsely notarized by his employees. He returned the documents to the daughter. She filed the forgeries with the probate court.

The scheme came undone when one of the four kids complained about his situation. The daughter retained counsel to oppose her brother. By chance, her retained counsel serves on the Attorney Grievance Commission. That attorney's complaint led to disciplinary charges.

The attorney fully admitted his conduct and cooperated throughout the ensuing proceedings. The trial court found he had "cooperated with Bar Counsel to an extensive degree to his own detriment and in furtherance of the purposes of the Maryland Attorney Greivance Commission."

The trial court did not find that there was a pattern of misconduct. The attorney had been motivated solely by a desire to assist the children in carrying out what they all agreed was their mother's intent, even though she had never signed. The attorney got only trouble, not benefit, from the misconduct

The court majority sustained Bar Counsel's exception to the failure to find a pattern and ordered disbarment in light of its key dishonesty precedent, the Vanderlinde case:

[The attorney] asserts that he only was attempting to facilitate his client's wishes and respond to a truly sorrowful situation and that he did not benefit from his acts. We have already addressed these contentions [in another earlier case], when we said, "[v]iolations of Rule 8.4 are not justified by reference to the ends when illegal methods are utilized, nor by whether the attorney profited from the illicit behavior"...There can be no doubt that lawyers deal with situations and circumstances that are tragic, as well as emotionally intense and vexing for clients, as happiness only may be found with a client that adopts a child.

Attorneys, however, are not hired guns for individuals who seek to subvert the administration of justice. Rather, the great strength of our profession lies in the intregrity with which we act and the honor we bring to our work. Attorneys are not permitted to discard their ethical obligations when it becomes difficult or stessful to maintain them.

Justice Murphy, joined by Chief Justice Bell, dissented as to the sanction. Even though the misconduct took place over several days, they would find that the misconduct was an isolated incident with the sole purpose of carrying out the mother's intent. They would impose an indefinite suspension of no less than two years. (Mike Frisch)

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So what is the Bar trying to prove with this decision? If people are going to be disbarred even if they have no prior record, come clean and cooperate, then what's the point? This guy would have been better off trying to cover the whole thing up.

Posted by: Carolyn Elefant | May 2, 2011 6:53:48 PM

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